On Wednesday, February 8, the FAA published a Notice of Policy in the Federal Register confirming that letters of deviation authority (LODAs) are no longer required for most flight training in experimental aircraft where the use of the aircraft is not being compensated. These LODAs were introduced shortly before AirVenture 2021 following a court ruling that almost all flight training in experimental aircraft was contrary to FAR 91.319(a)(2), which prohibited the operation of experimental aircraft for compensation or hire.
The new policy alleviating the need for LODAs is the result of the “James M. Inhofe National Defense Authorization Act for Fiscal Year 2023,” the annual defense spending bill which was named for recently-retired Senator James Inhofe (R-OK, EAA 179992). The bill, signed into law on December 23 of last year, included language supported by EAA, AOPA, and others that stated the following:
A flight instructor, registered owner, lessor, or lessee of an aircraft shall not be required to obtain a letter of deviation authority from the Administrator of the Federal Aviation Administration to allow, conduct or receive flight training, checking, and testing in an experimental aircraft if–
(1) the flight instructor is not providing both the training and the aircraft;
(2) no person advertises or broadly offers the aircraft as available for flight training, checking, or testing; and
(3) no person receives compensation for use of the aircraft for a specific flight during which flight training, checking, or testing was received, other than expenses for owning, operating, and maintaining the aircraft.
This language eliminates the need for a LODA in most common cases of flight training, such as receiving a flight review or transition training in one’s own aircraft.
As was the case prior to 2021, those wishing to offer training to the flying public that includes the rental of an experimental aircraft will continue to need a LODA, and the FAA’s LODA policy only covers certain types of training, such as transition training for builders and new owners of experimentals. It also covers ultralight training in certain low-mass, high-drag types.
The Notice of Policy contains four examples of operations requiring and not requiring LODAs. They are reproduced below along with EAA’s comments (the “Act” herein is the aforementioned Defense Authorization Act):
Scenario A: An experimental aircraft owner wishes to hire a flight instructor to receive flight training in the owner’s own aircraft. The owner intends to pay the flight instructor for the instruction. This operation is permissible under the Act without a LODA.
EAA’s comment: this is the most common – and essential – type of training in experimentals and is once again allowed to continue without any involvement from the FAA.
Scenario B: An experimental aircraft owner seeks to provide flight training in their aircraft to others. This owner (or a person or entity action [sic] on their behalf) is willing to allow almost anyone who comes to receive flight training in the owner’s aircraft, provided the person receiving training pays a fee. The owner advertises flight training on a website and/or offers these training flights to attendees at various air shows. This operation is not permissible under the Act and would continue to require a LODA.
EAA’s comment: this type of training has always required a LODA, as the FAA generally limits commercial flight training to aircraft with higher levels of certification oversight unless such an aircraft does not exist (i.e. for transition training in homebuilts, jet upset training, etc…)
Scenario C: Four people co-own an experimental aircraft as part of a flying club. One of these people needs to get a flight review in the aircraft, so that person hires a flight instructor and pays the instructor for the training, plus pays a pre-arranged hourly rate that covers fuel used during the flight, as well as ongoing maintenance costs. Each co-owner pays the same hourly rate as a part of a co-ownership contract. Members of the flying club do not expect monetary gain or profit, but rather the fee is in place to cover the costs of owning, operating, and maintaining the aircraft. This scenario is permissible under the Act without a LODA.
EAA’s comment: This is confirmation that experimental aircraft may be operated by noncommercial flying clubs, and training in these aircraft is permissible without a LODA.
Scenario D: An owner of an experimental aircraft starts a flying club and advertises to gain flying club members. This person charges a fee for “club membership,” and club members are given a flight training flight or series of flights in return. This fee yields a profit for the owner in excess of the compensation permissible under the Act. This operation includes broadly offered flight training, as well as an operator offering both the aircraft and the instructor. This operation is not permissible under the Act and would continue to require a LODA. Depending on the circumstances, this operation may also require some other kind of authorization from the Administrator, such as an air carrier or commercial operator certificate, or a commercial air tour letter of authorization.
EAA’s comment: This is an unusual scenario, where a flying club financially enriches an aircraft owner. Additionally, flying clubs “broadly offering flight training” are specifically not allowed under the new law, which is consistent with longstanding FAA policy regarding all flying clubs (operating experimentals or otherwise) at publicly funded airports. Flying clubs may provide training to their members, but may not represent themselves as a flight training operation to the general public (see Page 10-4 of FAA Order 5190.6B).
There is additional relief necessary that will need to be accomplished via rulemaking. Notably, this relief only extends to experimental aircraft and excludes Limited and Primary Category* aircraft. EAA holds an exemption that provides relief to Limited Category aircraft owners and operators, and will continue to hold it until the issue is resolved.
For more information, EAA members can watch a recent webinar presented by Government Relations Director Tom Charpentier, which explains the history of this issue and the continued use of LODAs for vital specialized training. This webinar was recorded prior to this new Notice of Policy, and at the time the effective date of the new law remained an open question.
*Primary Category is a rarely-used aircraft certification category; this is not a reference to primary training.